Adoption of: T.M.L.M., A Minor, Appeal of: S.L.M.
184 A.3d 585
| Pa. Super. Ct. | 2018Background
- Child (born June 2011) was adjudicated dependent in June 2014 and placed with maternal great-aunt under CYS supervision after Mother’s 2014 psychiatric crisis and concerns about substance abuse, domestic violence, supervision, and mental health.
- Over nearly three years in kinship care, Child was described as "flourishing," while Mother showed minimal-to-no compliance with permanency plan goals after Dec. 2015, including failing substance‑abuse and mental‑health treatment and lacking stable housing.
- Mother had prolonged periods without contact, was charged in a drug conspiracy and, in April 2017, pled guilty and was incarcerated (36–72 months) at the time of the termination hearings.
- CYS filed a petition on Oct. 25, 2016 seeking involuntary termination of Mother’s parental rights; hearings occurred Jan 24, May 5, and May 18, 2017; the orphans’ court terminated Mother’s rights on Sept. 5, 2017 under 23 Pa.C.S. § 2511.
- The orphans’ court appointed Attorney Suzann Lehmier for Child, but the record shows Lehmier never interviewed Child, advocated only Child’s best interests (not Child’s preferred/legal outcome), and did not participate on appeal (no brief, no oral argument).
- The Superior Court vacated the termination order and remanded because Child was deprived of the statutory right to counsel representing his legal interests; court directed appointment of separate counsel for Child’s legal interests and limited circumstances for a new hearing.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Child had statutorily required counsel representing his legal interests under 23 Pa.C.S. § 2313(a) | Lehmier’s appointment satisfied L.B.M.; Child was represented | Mother argued ineffective/absent representation of Child’s legal interests | Held: Child deprived of statutory right to legal‑interests counsel; vacate and remand for appointment of separate counsel |
| Whether counsel may function solely as best‑interests advocate without ascertaining Child’s preferred outcome | Counsel’s statements about best interests suffice when child is young | Mother argued counsel must attempt to ascertain and advocate child’s legal (preferred) outcome | Held: Under L.B.M., counsel must attempt to ascertain and advocate child’s legal interests; best‑interests advocacy alone is insufficient |
| Whether failure to have proper child counsel at hearings is harmless error given Child’s need for permanency | Permanency favors leaving termination intact to avoid delay | Mother maintained procedural right violation requires remedy unless no substantive purpose would be served by remand | Held: Vacatur required here because counsel never ascertained or advanced Child’s legal position; remand ordered though new hearing only if it serves substantive purpose |
| What remedies are appropriate when child lacked legal‑interests counsel | No new hearing necessary if appointment belatedly shows child would not change outcome | Mother argued vacatur and new counsel to represent child on remand | Held: Vacated termination; on remand appoint counsel for legal interests who will determine whether prior result aligns with child’s legal interests and whether a new hearing is necessary |
Key Cases Cited
- In re Adoption of G.K.T., 75 A.3d 521 (Pa. Super. 2013) (appointment of counsel for contested involuntary termination is mandatory)
- In re E.F.H., 751 A.2d 1186 (Pa. Super. 2000) (statutory right to counsel for child in termination proceedings)
- In re Adoption of L.B.M., 161 A.3d 172 (Pa. 2017) (counsel must represent child’s legal interests distinct from best interests; debate on GAL dual‑role)
- In re D.L.B., 166 A.3d 322 (Pa. Super. 2017) (interpretation of L.B.M.; no remand where counsel advocated non‑conflicting best and legal interests)
- In re Adoption of N.A.G., 471 A.2d 871 (Pa. Super. 1984) (purpose of §2313 is to provide an advocate loyal exclusively to the child; harmless error analysis)
- In re Adoption of J.L., 769 A.2d 1182 (Pa. Super. 2001) (child’s counsel duties continue post‑hearing, including on appeal)
- In re M.T., 607 A.2d 271 (Pa. Super. 1992) (counsel’s abdication when failing to brief or represent client on appeal)
- In re J.J.F., 729 A.2d 79 (Pa. Super. 1999) (children deserve zealous representation despite representation challenges)